Ihura & another v Hagos Birikirti Tewoldernrehen De La Torre Ramirez Nelly Victoria (suing as the personal representative of the estate of Mendoza Lopaz Aquilina (Deceased))
The bottom line
#Kenya's Court of Appeal allowed late filing of an appeal record, ruling that a lawyer's departure from a firm without handover shouldn't punish the client.
What this practically means
#Executive summary
#Key legal issues
#Extension of time under Rule 4 of the Court of Appeal Rules
The applicants satisfied the Leo Sila Mutiso principles: the delay was not inordinate, the reasons (including counsel leaving the firm without handover) were sufficiently explained, the appeal was arguable, and no prejudice would be suffered since the record was already filed and served.
The court applied the settled four-fold test from Leo Sila Mutiso. The uncontroverted explanation that judgment was delivered without notice to the applicants and that counsel left the firm without handover sufficed. The record of appeal had already been filed and served, so the respondent would suffer only minor inconvenience. The motion was unopposed, with no response or submissions filed by the respondent.
Mistake of counsel should not be visited on an innocent litigant
The departure of the applicants' counsel from the law firm without proper handover, leaving the file unattended, was a mistake of counsel that should not be visited upon the applicants.
Relying on Murai & 79 Others v Amos Wainain as submitted by the applicants, the court accepted that the file went unattended because counsel left to join the judiciary. This assertion was not countered or controverted by the respondent, who filed neither a response to the motion nor written submissions.
Legal principles established
#- The decision whether to extend time for appealing is discretionary, and the court considers the length of the delay, the reasons for it, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- The Court of Appeal has wide and unfettered discretion under Rule 4, to be exercised judiciously.
Court orders
#- 1.The applicants' motion dated 22nd April 2022 is allowed as prayed
- 2.Time for service of notice of appeal and letter bespeaking proceedings extended
- 3.Notice of appeal and letter bespeaking proceedings dated 14th April 2021 deemed duly served within time
- 4.Time for filing and service of record of appeal extended
- 5.Record of appeal filed on 1st March 2022 and served on 2nd March 2022 deemed filed and served within time
- 6.Costs of the motion to abide the outcome of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- HCCA No. 519 of 2018
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 1(2) and Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ihura & another v Hagos Birikirti Tewoldernrehen De La Torre Ramirez Nelly Victoria (suing as the personal representative of the estate of Mendoza Lopaz Aquilina (Deceased))", Case Analysis (2022). Civil Application E093 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1017/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.